Fifth Circuit Decision Flags Area of Uncertainty in Future Title IX Retaliation Cases

On Monday the Fifth Circuit Court of Appeals rejected the appeal of Anthony Minnis, the former women’s tennis coach at Louisiana State, who had sued the university challenging his dismissal and other employment practices as racially discriminatory as well as retaliation for Title IX advocacy on behalf of his team.

Regarding the Title IX claim, Minnis’s legal argument was that the appellate court should address his retaliation claim in order to resolve a question of legal uncertainty regarding the application of Title VII standards to Title IX cases. Typically, when courts apply Title IX in the employment context, they are influenced by cases applying Title VII, the federal employment discrimination statute, which also prohibits discrimination on the basis of sex. Recently, in 2013, the Supreme Court ruled that Title VII retaliation plaintiffs must prove that retaliation was the “but for” cause of their termination or other adverse action. In other words, they must show that the employer was solely motivated by retaliation, rather than by a “mixed motive” that includes retaliation among other reasons. Because employers’ motives are frequently complicated and plausibly involve multiple factors, the Supreme Court’s decision considerably narrowed the scope of Title VII’s application to retaliation claim.

Minnis’s lawsuit used Title IX, rather than Title VII, to advance his retaliation claim. If his case had not been dismissed on summary judgment grounds, the lower court might have had to consider the question of whether Title IX continues to allow retaliation plaintiffs to prevail in mixed-motive cases, or whether the Supreme Court’s rejection of mixed motive cases under Title VII extends to Title IX as well. Minnis argued that the appellate court should have taken his appeal so that they could address that issue and provide clarity to lower court in its jurisdiction. However, the lower court’s dismissal of Minnis’s retaliation claim did not turn on whether the university had a single or mixed motive. Rather, the lower court ruled that Minnis failed to establish a prima facie case by demonstrating that he engaged in protected conduct. (Because both the men’s and women’s tennis coaches had advocated for an indoor facility, this could not even plausibly be a Title IX retaliation claim, according to the lower court.) Since his case would not fall under Title IX to begin with, the court does not reach the legal question over whether mixed-motive arguments are still available to Title IX retaliation plaintiffs.

But the decision reminds us that this is an area of legal uncertainty that will eventually have to be addressed in future cases.